মঙ্গলবার, ২৭ ডিসেম্বর, ২০১১

Maritime & Shipping Law



Maritime & Shipping Law

Topic: Territorial Sea

? Possible questions/points under the Territorial Sea topic:-


Ø     Identify Territorial Sea [Meaning; origin; quantity(breadth); legal status];
Ø     Procedure of Delimitation of the territorial sea between two opposite or adjacent States ;
Ø     Meaning of passage & innocent passage;
Ø     Right of innocent passage in Territorial Sea of others;
Ø     Activities/ things of prejudicial to the peace, good order or security of the coastal State;
Ø     Power of coastal state in Territorial Sea;
Ø     Duties of coastal state in Territorial Sea;
Ø     Charges which may be levied upon foreign ships in Territorial Sea;
Ø     Criminal jurisdiction of coastal states over  a foreign ship in Territorial Sea;
Ø     Civil jurisdiction of coastal states over a foreign ship in Territorial Sea.

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Territorial Sea: [Article 3 of the United Nations Convention on the law of the Sea, 1982]:-
ü     Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil: [Article 2 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
ü     This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
ü     The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
Delimitation of the territorial sea between two opposite or adjacent States with coasts: [Article 15 of the United Nations Convention on the law of the Sea, 1982]:-
ü     Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.
Meaning of passage: [Article 18 of the United Nations Convention on the law of the Sea, 1982]:-
ü     Passage means navigation through the territorial sea for the purpose of:
o      traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
o      proceeding to or from internal waters or a call at such roadstead or port facility.
ü     Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
Meaning of innocent passage: [Article 19 of the United Nations Convention on the law of the Sea, 1982]:- [How long innocent passage is valid?]
ü     Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
Right of innocent passage: [Article 17 of the United Nations Convention on the law of the Sea, 1982]:-
ü     Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.
Things prejudicial to peace, safety, good order of the coastal state: [Article 19 of the United Nations Convention on the law of the Sea, 1982]:-
ü     Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
o      any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
o      any exercise or practice with weapons of any kind;
o      any act aimed at collecting information to the prejudice of the defense or security of the coastal State;
o      any act of propaganda aimed at affecting the defense or security of the coastal State;
o      the launching, landing or taking on board of any aircraft;
o      the launching, landing or taking on board of any military device;
o      the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
o      any act of willful and serious pollution contrary to this Convention;
o      any fishing activities;
o      the carrying out of research or survey activities;
o      any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
o      any other activity not having a direct bearing on passage.
Powers of coastal state: [Article 22 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships.
ü     In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.
ü     In the designation of sea lanes and the prescription of traffic separation schemes under this article, the coastal State shall take into account:
o      the recommendations of the competent international organization;
o      any channels customarily used for international navigation;
o      the special characteristics of particular ships and channels; and
o      the density of traffic.
ü     The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given.
Duties of the coastal State: [Article 24 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:
o      impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or
o      discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.
ü     The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.
Charges which may be levied upon foreign ships: [Article 26 of the United Nations Convention on the law of the Sea, 1982]:-
ü     No charge may be levied upon foreign ships by reason only of their passage through the territorial sea.
ü     Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination.
Criminal jurisdiction on board a foreign ship: [Article 27 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
o      if the consequences of the crime extend to the coastal State;
o      if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
o      if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
o      if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
ü     The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.
ü      In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken.
ü     In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation.
ü     Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
Civil jurisdiction in relation to foreign ships: [Article 28 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.
ü     The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.
ü     Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.
So, these are the all about of the topic of Territorial Sea.

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Topic: Exclusive Economic Zone:

? Possible questions/points under the Exclusive Economic Zone topic:-

Ø     Identify Exclusive Economic Zone [Meaning; origin; quantity(breadth)];
Ø     Procedure of Delimitation of the Exclusive Economic Zone topic between two opposite or adjacent States ;
Ø     Rights, jurisdiction and duties of the coastal State in the exclusive economic zone;
Ø     Rights and duties of other States in the exclusive economic zone;
Ø     Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone;
Ø     Criticisms on the exclusive economic zone.

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Origin & Meaning of the exclusive economic zone:-
ü     UNCLOSIII inventions the concept of the EEZ. The provisions of EEZ in total 21 articles. [Art. 55 to 75 of the United Nations Convention on the law of the Sea, 1982.
ü     The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
Breadth of the exclusive economic zone:-
ü     The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Procedure of Delimitation of the Exclusive Economic Zone topic between two opposite or adjacent States:-

ü     The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
Rights, jurisdiction of the coastal State in the exclusive economic zone [Article 56, 60 of the United Nations Convention on the law of the Sea, 1982]:-
ü     In the exclusive economic zone, the coastal State has:
o      sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
o      jurisdiction as provided for in the relevant provisions of this Convention with regard to:
§       the establishment and use of artificial islands, installations and structures;
§       marine scientific research;
§       the protection and preservation of the marine environment;
ü     [Art.-60] In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
o      artificial islands;
o      installations and structures for the purposes provided for in article 56 and other economic purposes;
o      installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
Duties of the coastal State in the exclusive economic zone:-

ü     It shall act with the provisions of the law of the sea convention;
ü     It shall determine the allowable catch of the living resources in the EEZ;
ü     It shall ensure that the living resources in the EEZ are not endangered by over exploitation;
ü     It shall give due notice of conversation & management of laws & regulations.

Rights and duties of other States in the exclusive economic zone: [Article 58 of the United Nations Convention on the law of the Sea, 1982]:-
ü     In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and over flight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
ü     Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
ü     In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone: [Article 59 of the United Nations Convention on the law of the Sea, 1982]:-
ü     In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
A critical view on exclusive economic zone:

ü     Regime of EEZ cannot assure rights of other states in the exploitation of living resources. Other states cannot be sure of overcoming coastal states dishonest attempt unless a portion of the allowable catch is reserved for them.

ü     EEZ becomes only applicable to living resources at the presence of the coastal state. 200 NM is a significance portion of the global ocean. A state that is technologically & scientifically developed will be more & more benefited. So, it is apprehended that the new emerging law of the sea will only make the rich richer & the poor poorer.
So, these are the all about the exclusive economic zone.
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Topic: The continental shelf


? Possible questions/points under the Exclusive Economic Zone topic:-

Ø     Meaning of the continental shelf;
Ø     Rights of the coastal State over the continental shelf;
Ø     Procedure of Delimitation of the continental shelf topic between two opposite or adjacent States ;
Ø     Differences between continental shelf & exclusive economic zone.
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Definition of the continental shelf [Article 76 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
Rights of the coastal State over the continental shelf [Article77 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
ü     The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.
ü     The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
ü     The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
Delimitation of the continental shelf between States with opposite or adjacent coasts [Article 83 of the United Nations Convention on the law of the Sea, 1982]:-
ü     The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
ü     If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
ü     Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
ü     Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
Differences between continental shelf & exclusive economic zone

ü     According to MK Nawaz, EEZ differs from CS in that it extends to the living and non-living resources in the area of sea, the outer limits of which are measured by distances rather than by dept or exploitability.
ü     The legal regime of CS is largely governed by international customary laws. But LOS has created a specific legal regime for EEZ.
ü     EEZ: Living-Non-living both resources (water/sea-bed/subsoil), But, CS: Only natural resources/sedentary species (sea-bed/subsoil)
ü     IN point of fact, 200 NM EEZ is less complicated than CS. Prof. Brown says, ‘the basic fact is that the EEZ is an entirely artificial man-made zone in the zone in the sense that it bears no relation to natural features such as the continental margin’.
ü     In Libyan Arab Jamahiriya vs. Malta ICJ Report 1985, Para 35, it was pointed out that, ‘Although there can be CS where there is no EEZ, sometimes there can not be EEZ without corresponding continental shelf’.


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Topic: Jurisdiction of the high sea



? Possible questions/points under the Exclusive Economic Zone topic:-
Ø     Meaning of Jurisdiction of the high sea;
Ø     Fundamentals on high sea;
Ø     Meaning of Common heritage of mankind in the Law of the Sea;
v    Legal status of the Area and its resources;
v    Use of the Area exclusively for peaceful purposes;
v    Benefit of mankind etc.
Ø     Basic elements of Common heritage of mankind;
Ø     Challenge before Common heritage of mankind;
Ø     The future of bio-prospecting in Common heritage of mankind.


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Jurisdiction of the high sea/ Freedoms of high sea: [Article 87 of the United Nations Convention on the law of the Sea, 1982]:-]
ü     The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
o      freedom of navigation;
o      freedom of over flight;
o      freedom to lay submarine cables and pipelines, subject to Part VI;
o      freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
o      freedom of fishing, subject to the conditions laid down in section 2;
o      freedom of scientific research, subject to Parts VI and XIII.
ü     These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

Fundamentals on high sea: [Articles 88, 89, 90 of the United Nations Convention on the law of the Sea, 1982]:-

ü     Article 88: The high seas shall be reserved for peaceful purposes.
ü     Article 89: No State may validly purport to subject any part of the high seas to its sovereignty.
ü     Article 90: Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
Common heritage of mankind [Articles 136, 137, 140, 141 of the United Nations Convention on the law of the Sea, 1982]:-

ü     The Area and its resources are the common heritage of mankind. [Art. 136 of the United Nations Convention on the law of the Sea, 1982]:-

ü     Legal status of the Area and its resources [Article137 of the United Nations Convention on the law of the Sea, 1982]:-

o      No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.
o      All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority.
o      No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.
ü     Use of the Area exclusively for peaceful purposes [Article141 of the United Nations Convention on the law of the Sea, 1982]:-
o      The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part.
ü     Benefit of mankind [Article140 of the United Nations Convention on the law of the Sea, 1982]:-
o      Activities in the Area shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status recognized by the United Nations.
o      The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis.


Basic elements of Common heritage of mankind:

ü     The basic elements of the regime of common heritage of mankind, applying to the seabed beyond the limits of national jurisdiction, are the prohibition of national appropriation, the destination of the seabed for peaceful purposes, the use of the seabed & its resources for the benefit of mankind as a whole with particular consideration for the interest & needs of developing countries, the establishment of an international organization entitled to act on behalf of mankind in the exercise of rights over the resources.

Challenge before Common heritage of mankind:

ü     Reaching deep seabed, extreme environments & maintaining alive the sampled organism as well as culturing them, requires sophisticated & expensive technologies.

The future of bio-prospecting in Common heritage of mankind:

ü     Deep seabed resources hold enormous potential for many types of commercial applications, including health sector, for industrial processes. A brief search of patent office databases revealed that compounds from seabed organism have been used as basis for potential cancer fighting drugs, commercial protection products providing higher resistance to ultraviolet & heat exposure, & for preventing skin inflammation, anti-allergy agents.

So, these are the all about the Jurisdiction of the high sea.
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